California Coalition’s Reply Brief sets forth seven main themes:
1. Establishing fundamental federal rights to familial association which the Family Court judges have attacked;
2. Attacking immunity of family court judges—providing the Court of Appeals for the Ninth Circuit a detailed historic analysis of the immunity doctrine that is required under the recent United States Supreme Court case of Rehberg v. Paulk;
3. The leading Ninth circuit case granting a broad judicial immunity–Ashelman v. Pope–is bad law and should be overturned;
4. Commission on Judicial Performance is not entitled to Eleventh Amendment immunity;
5. Ninth Circuit cases applying ancient “code” and “form” pleading are abrogated, yet still cited improperly, and should be overturned;
6. The California Public Records Act section prohibiting publication of state officials’ home addresses is unconstitutional; and
7. Family Court judges and others filed improper “cross-appeals” that should be dismissed.
Details of California Coalition’s analysis in its Opening Brief is here.
1. Family Federal Rights Are Fundamental, Clearly-Established Rights the Family Court Judges Not Only Ignore, But Ridicule California Families for Asserting
In places the Family Court judges got nasty. They vigorously attacked California Coalition’s claim that families have unique, clearly-established, fundamental rights under federal law that the State of California is ignoring—treating families as sheep instead of a vital, autonomous, venerable core of our communities. California Coalition’s complaint labeled that “bundle” of rights unique to families as “Family Federal Rights.” Family Court judges took aim at the concept in their briefing. California Coalition responded in the brief:
California Coalition Seeks to Vindicate “Family Federal Rights”
Prospective Relief Counts 1 and 2 seek declarations and injunctions to establish, vindicate, and enforce fundamental establish rights—defined in the complaint as “Family Federal Rights.” ER 350, 353, 123-24. Several Appellees mock the concept of “Family Federal Rights.” E.g., Jud. Brf. p. 13.
“Family Federal Rights” are unique to persons having familial relationships. They are clearly-established and well recognized in United States courts, which are advanced from Family Courts within the State of California. The rights are articulated though generations of Supreme Court precedent going back at least as far as Pierce v. Society of Sisters, 268 U.S. 510 (1925), are derived from the first, fourth, fifth, and fourteenth amendments to the United States Constitution, and guarantee a unique genus of liberties of association, free speech, and privacy, and entitled to heightened protections of due process and equal protection.
California Coalition has spotlighted this well-established bundle of fundamental rights of association, privacy, expression and conscience to distinguish the unique context in which “traditional” constitutional rights are treated by United States courts, and by this action seeks prospective relief to protect their exercise.
2. The Common Law History of Judicial Immunity is Weaker Than Prior Cases Acknowledge
In their opposition briefs, Family Court judges didn’t dispute that judicial immunity depends on an historic analysis, yet they also failed to provide the Court of Appeals with any analysis contradicting California Coalition’s. Instead, Family Court professionals “fell back” on the doctrine of stare decisis, and citing prior Ninth Circuit and United States Supreme Court precedent extending immunity.
In reply, California Coalition went after that precedent as well, analyzing the historic common law of judicial immunity and legislative “speech and debate” privilege, and comparing those narrow privileges with the far, far more broad immunities that judges exercise today. From the brief:
Congress Intended to Abrogate Judicial Immunity
The Supreme Court’s twentieth century condemnation of “freewheeling” immunity “policy” originating in Malley v. Briggs, 475 U.S. 335 (1986) is the honest half of its absolute immunity jurisprudence. “We reemphasize that our role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice, and that we are guided in interpreting Congress’ intent by the common-law tradition.” Id. at 342. Under Malley’s command we examine only congressional intent.
The other half has found an absolute immunity in the unambiguous statute because—it is said—“The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities . . . . The immunity of judges for acts within the judicial role is equally well established [as the speech and debate privilege], and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.” Pierson v. Ray, 386 U.S. 547, 554-555 (1967). The “presumption” is as worthy as any speculation. It overlooks the most obvious evidence of congressional intent—the unambiguous language of the statute itself. Moreover, actual analysis of the congressional record, and history of judicial immunity reveals Chief Justice Warren’s presumption is simply wrong.
Pierson Incorrectly Analyzed Legislative Privilege Rather Than Judicial Immunity
In Pierson Chief Justice Warren “presumed” that “the immunity of judges” was “equally well established” as the legislative privilege. Remarkably, in presuming, he failed to conduct any analysis of the common law of judicial immunity—citing only to Bradley’s (post-Civil Rights Act) holding and Scott v. Stansfield, 3 Law Reports, Exchequer, 220. Pierson at 554. Chief Justice Warren’s analysis went no deeper. Dissenting, Justice Douglas did go deeper, supporting his forceful conclusion: “The Court’s ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common-law doctrine of judicial immunity, and does not follow inexorably from our prior decisions.” Pierson v. Ray, 386 U.S. 547, 559 (1967) (Douglas, J., dissenting).
Instead of analyzing judicial immunity, Justice Warren adopted analysis of legislative privilege from Tenney v. Brandhove, 341 U.S. 367 (1951). In Tenney Justice Frankfurter considered whether a California legislative committee conducting a contempt proceeding against a man circulating a flyer protesting the committee was immune from an action under Section 1983. Id. at 377. The question was whether a “speech or debate” privilege could be extended to a lawmaker’s behavior at a contempt hearing. Id.
Justice Frankfurter traced the history of English common law preserving legislative privilege as derivative of liberty—an extension of the voters’ freedom of speech and conscience. Id. at 372-73. He aligned the privilege with the federal “speech or debate” analog in the United States Constitution at Article I, Sec. 6, cl. 1. He presumed—analyzing no legislative history—that the 42nd Congress would not have intended to limit legislative privilege in enacting the 1871 Civil Rights Act because Congress was itself a “staunch advocate of legislative freedom.” Id. at 376 (emphasis added).
Tenney extended the speech immunity to the contempt function because legislators are directly-elected and immediately accountable to voters. Id. at 378. Tenney also held the narrow immunity was lost if “there was a usurpation of functions exclusively vested in the Judiciary or the Executive.” Id.
Judicial Immunity is the Opposite of Legislative Privilege—Judges Are Sovereigns Possessing Not “Rights” but Delegated Authority
Judicial authority and legislative freedom are night and day. Judges exercise jurisdiction as sovereigns—not liberties from sovereigns. While judges have all the rights of any citizen qua a citizen, a judge qua judge possesses no rights. “First and Fourteenth Amendments restrain “only such action as may fairly be said to be that of the States.” United States v. Morrison, 529 U.S. 598, 621 (2000). “[T]he censorial power is in the people over the Government, and not in the Government over the people.” New York Times Co. v. Sullivan, 376 U.S. 254, 282-83 (1964). There is no need for a judge to express opinions, experiences, or desires of her own or those she represents to create law—she is given law. Other than necessary for faithful execution of the law, a judge’s “freedom of conscience” is irrelevant to judicial function—relevant “conscience” is given in the form of law that has matured through free debate elsewhere. Judges do not function as a body, and (should) have no one to “debate.” The Constitution does not extend a speech and debate privilege to the judiciary because courts are not empowered to speak or debate. The function of a judge is to adjudicate—apply the given law to properly-admitted facts. There is no need to protect a judge’s “speech” other than to preserve the judge’s ability to pronounce adjudication—merely a “substantial state interest.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991). Judges are not representatives of voters, but independent of electoral will, passion, and accountability.
The long history of preservation of legislative debate—a fundamental liberty—is absent from the history of judicial immunity. There being no similar “firmly-rooted tradition” of judicial speech liberty in 1871, there is no reason to “presume” that the 1871 Congress would have seen need to exclude a tradition that has never existed. Pierson’s adoption of Tenney was error.
Congress Expressly Intended to Abrogate Judicial Immunity
Nor can Chief Justice Warren’s “presumption” withstand the incontrovertible record—The 1871 Congress repeatedly expressed intent that the Civil Rights Act would abrogate judicial immunity. Congress adopted the language of Section 1983 from its criminal analog—the 1866 Civil Rights Act, today codified at 18 U.S.C. § 242. Monroe v. Pape, 365 U.S. 167 (1961). Section 1983 was introduced by Ohio Representative Shellabarger, who explained his bill on the House floor by referencing Section 2 of the 1866 Act: “that section provides a criminal proceeding in identically the same case as this one provides a civil remedy for . . . ” The Acts thus “must be construed as in pari materia”—any construction of the 1871 Act must admit congressional intent in enacting the 1866 Act. Picking v. Pennsylvania R.R., 151 F.2d 240 (3rd Cir. 1945).
On that record it is incontrovertible that the 42nd Congress affirmatively rejected common law judicial immunity.
I answer it is better to invade the judicial power of the States than permit it to invade, strike down, and destroy the civil rights of citizens. A judicial power perverted to such uses should be speedily invaded.
Cong. Globe, 39th Cong., 1st Sess. 1837 (1866) (remarks of Representative Lawrence). The 1866 Act was vetoed by President Johnson because it abrogated common law judicial immunity. In the fight to defeat the veto, Senate Judiciary Committee Chairman Trumbull expressed revulsion at the entire concept of judicial immunity: “It is the very doctrine out of which the rebellion was hatched.”
Section 1 of the 1871 Act (now Section 1983) passed rapidly through Congress because debate wasn’t necessary—Congress recognized Section 1 as merely “adding” a civil remedy to the 1866 Act. Debate instead focused on section 2 of the bill (modernly Section 1985) because of concerns over federalism and regulation of private behavior. Griffin v. Breckenridge, 403 U.S. 88, 99 (1971).
The recorded debate demonstrates unequivocally that Congress intended to abrogate common law judicial immunity:
[T]he decisions of the county judges, who are made little kings, with almost despotic powers to carry out the demands of the legislature which elected them-powers which, almost without exception, have been exercised against Republicans without regard to law or justice, make up a catalogue of wrongs, outrageous violations, and evasions of the spirit of the new constitution, unscrupulous malignity and partisan hate never paralleled in the history of parties in this country or any other.
Cong. Globe, 42nd Cong., 1st Sess. 186 (1871) (remarks of Representative Platt).
What is to be the case of a judge? . . . Is that State judge to be taken from his bench? Is he to be liable in an action? … It is the language of the bill: for there is no limitation whatsoever on the terms that are employed, and they are as comprehensive as can be used.
Id. (remarks of Senator Thurman).
“[T]he judge of a State court, though acting under oath of office, is made liable to a suit in the Federal Court and subject to damages for his decision against a suitor, however honest and conscientious that decision may be . . .”
Id. (remarks of Representative Lewis). Representative Arthur recognized the law would be a drastic reversal of common law immunity:
Hitherto, in all the history of this country and of England, no judge or court has been held liable, civilly or criminally, for judicial acts …. Willfulness and corruption in error alone created a liability . . . .Under the provisions of this section every judge in the State court. . . will enter upon and pursue the call of official duty with the sword of Damocles suspended over him . . .”
Cong. Globe, 42nd Cong., 1st Sess. (1871) 365-366.
Courts considering parallel questions have deferred to this vivid record. See, e.g., Picking v. Pennsylvania R.R., 151 F.2d 240 (3rd Cir. 1945) (“But the privilege as we have stated was a rule of the common law. Congress possessed the power to wipe it out. We think that the conclusion is irresistible that Congress by enacting the Civil Rights Act sub judice intended to abrogate the privilege to the extent indicated by that act and in fact did so . . . . The statute must be deemed to include members of the state judiciary acting in official capacity.”); Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 665 (1978); Owen v. City of Independence, Mo., 445 U.S. 622, 643 (1980); Pulliam v. Allen, 466 U.S. 522, 543 (1984).
Far from an intent to incorporate common law judicial immunity, Congress in passing both Acts specifically intended to eliminate it as the source of the monumental evil of state-sponsored oppression jeopardizing our nation’s existence by precipitating civil warfare.
Congress Could Not Have Intended Bradley’s Immunity “Policy”
Bradley was decided in 1872—a year after Congress passed Section 1983. Congress could not have had it in mind while debating Section 1983. It is thus irrelevant in analysis under Rehberg and Malley’s command. Neither are twentieth century “expansions” of Bradley relevant. E.g., Pierson, Sparkman, Mireles.
Justice Field’s articulation of policy in Bradley was innovative—not descriptive. Bradley “expanded” Randall v. Brigham, 74 U.S. 523 (1868)—the first federal case to consider absolute judicial immunity. Every authority cited in Randall is from an English autocracy our nation fought wars to become independent of. See Randall n. 14.
Justice Field’s 1868 statement of monarchical of immunity for superior judges was:
[Was] the act done a judicial act, done within his jurisdiction? If it was not, he can claim no immunity or exemption by virtue of his office from liability as a trespasser; for if he has acted without jurisdiction, he has ceased to be a judge.
Randall at 531. Inferior judges enjoyed only a qualified immunity. See Kalina v. Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., Thomas, J., concurring). Justice Field acknowledged decisions which denied an absolute immunity “where the acts, in excess of jurisdiction, are done maliciously or corruptly.”
Field’s qualification was warranted. Analyses of 1871 common law reveal predominating inconsistency—nothing close to a “firmly-rooted tradition.” Few American States had considered an immunity rule, and those that did disagreed. Yale Note at 326-27. “[A]s in England, the lower judges were most subject to suit, and for many of them the rule was one of liability for extra-jurisdictional acts, malicious acts, or both.” Id. Justice Field’s opinion in Bradley hastened the expansion of immunity: “[Bradley] was enormously influential in recasting the doctrinal analysis of state courts, as well as their general approach to problems in this area. By the early twentieth century, the law had begun to shift from a basic position of liability to a preference for immunity, although the culmination of the change was very recent.” Suing Judges at 221 (emphasis added).
Bradley’s innovative policy exhortation—though perhaps persuasive in case it one day finds its way onto the floor of Congress—cannot inform us of congressional intent in 1871. Far from controlling, Bradley is the germ of the damnable “freewheeling” policy analysis condemned by the Supreme Court from Malley through Rehberg.
The only honest conclusion is astounding—yet incontrovertible. Nineteenth and twentieth century American judges have overstepped constitutional restriction to usurp powers reserved to the legislature and written for themselves an immunity far greater even than that of an English judge at common law. California Coalition submits 1871 common law cannot support any tradition of absolute immunity satisfying Rehberg and Malley’s command.
Conclusion: “If aura there be, it is hardly protected by exonerating from liability such lawless conduct as took place here”
Ashelman’s and Pierson’s disregard of the unambiguous language and statutory history of the Civil Rights Acts have enabled deprivation of fundamental rights of vulnerable, unsophisticated United States citizens the statutes were intended to protect—families and children of moderate means ensnared in government systems that survive on exploitation and oppression of the unfortunate. On the foundation of such roguish jurisprudence, Appellees have “expanded” obscenely profitable business enterprises inside of county courthouses, coopted local police powers and prosecutors to persecute lawful behavior, and jointly monetized the evil at their core, heaping deprivation, insult, and state-sponsored exploitation onto families in crisis.
“What shame a profession of reason today endures.” FAC 594; ER 224.
 Analyzed in Bradley at n. 16. “[A] judge of a county court was sued for slander, and he put in a plea that the words complained of were spoken by him in his capacity as such judge, while sitting in his court, and trying a cause in which the plaintiff was defendant.”
 This Court found—correctly—no privilege. Brandhove v. Tenney, 183 F.2d 121, 124 (9th Cir. 1950).
 That privilege is narrow: “The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” The privilege is against arrest—not civil liability—does not extend to felonies or treason, or “breach of the peace”— a misdemeanor. Arrest outside of “Session” is permitted, and members maybe “questioned” for activity other than “speech or debate.” Tenney at 377 (citing Kilbourn v. Thompson, 103 U.S. 168 (1880) (false imprisonment not privileged); Marshall v. Gordon, 243 U.S. 521 (1917). Even so limited Jefferson was fearful of the power it gave legislators. Tenney at 375. Hamilton was not so fearful of “the least dangerous branch”—because it exercised no similar liberty. The Federalist No. 78 (Alexander Hamilton) (1788).
 Dissenting in Tenney, Justice Douglas observed that “No other public official has complete immunity for his actions”—including of course judges. Tenney at 382 (Douglas, J., dissenting). “I see no reason why any officer of government should be higher than the Constitution from which all rights and privileges of an office obtain.” Id.
 See also Yale Note at 327-328.
 Cong. Globe, 42nd Cong., 1st Sess. 60 (App.) (1871); Yale Note at 327.
 Yale Note at 327.
 Cong. Globe, 39th Cong., 1st Sess. 1758 (1866) (remarks of Senator Trumbull); Yale Note at 328.
 See also Yale Note at 328 and references to additional consistent comments in n. 38. “On three occasions during the debates, legislators explicitly stated that judges would be liable under the  Act. No one denied the statements.” “In sum, the question of congressional intent seems relatively clear: there was no universal acceptance of the broad English immunity rule in 1871, and the only legislative history available supports the proposition that Congress intended Section 1983 to cover judges.” Yale Note at 328. Yale Note’s 1969 author left open the door that “the legislative history does not preclude entirely the Court’s construction of the statute if the policy reasons for judicial immunity are sufficiently persuasive.” That “policy reasons” door was closed eleven years later in Malley.
 Congress’ intent to hold judges accountable is recorded as recently as 1979 by the 96th Congress:
[Section 1983] is an essential element of an extraordinary series of congressional enactments that transformed the relationship between the Federal Government and its constituent parts. [T]he very purpose of the 1983 was to interpose the Federal courts between the States and the people, as guardians of the people’s Federal rights—to protect the people from unconstitutional action under color of State law, whether that action be executive, legislative, or judicial.
Statement of David A. Clarke, Chairperson, Committee on Judiciary, Government of the District of Columbia on the Act of Dec. 29, 1979, 93 Stat. 1284, PL 170 LH, 1st Sess. (Dec. 29, 1979) (emphasis added).
 “Certainly, no broad rule of immunity existed prior to Bradley. For most of the history of the common law, judges had only a very limited immunity.” Suing Judges at 256; Yale Note at 323-327 (“[J]udicial immunity was not a universal doctrine.”).
 Justice Field’s doctrinal epiphany From Randall to Bradley is well-documented. See C. Swisher, S. Field, Craftsman of the Law (1930); G. White, The American Judicial Tradition at 84-108 (1976); Graham, Justice Field and the Fourteenth Amendment, 52 Yale L.J. 851 (1943); McCurdy, Justice Field and the Jurisprudence of Government-Business Relations 61 J. Am. Hist. 970 (1975); Westin, Stephen Field and the Headnote to O’Neill v. Vermont, 67 Yale L.J. 363 (1958); Suing Judges at 243-249, 254-256.
 “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.” Thomas Jefferson to Charles Hammond, 1821
 See Suing Judges at 224-43 (analysis of pre-Bradley primary sources).
 These cases distinguish between superior judges—which enjoyed a statutory “cap” on money damages, and judges of limited jurisdiction, justices of the peace, and magistrates—who remained fully liable. Yale Note 325. Justice Field’s characterization of those sporadic decisions was hardly recognition of a “firmly-rooted tradition” of uniform broad immunity. Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000).
 Sparkman at 368 (Stewart, J. dissenting).
3. Ashelman v. Pope is Error, and Not Controlling Authority
Family Court judges also cited the Ninth Circuit case of Ashelman v. Pope, decided in 1986 after Stump v. Sparkman (1978) and Pierson v. Ray (1967). California Coalition’s Opening Brief attacked Ashelman as exceeding the limits of Article III jurisdiction of federal courts, and infringing on legislative authority. The Family Court judges didn’t put up much of a fight for Ashelman—indicating they understand the errors in the case. They merely fell back—again—on Ashelman’s status as “binding precedent.”
California Coalition counter-attacked that the Ninth Circuit Court of Appeals has on many occasions reversed its on precedent when it is obvious that precedent is wrong, and because Ashelman is clearly wrong, it should be reversed. From the brief:
Judicial Appellees concede they and the district court failed to identify a “firmly-rooted tradition” of an immunity at 1871 common law for any of the functions accused in the FAC. Tower v. Glover, 467 U.S. 914, 920 (1984); Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000). This concession is sufficient to reverse. Scheuer v. Rhodes, 416 U.S. 232, 249-50 (1974).
Appellees Attempt to Shift Their Burden
Appellees defend instead by arguing as if plaintiffs have a burden of pleading non-immunity: “[T]he FAC fails to identify any acts outside the scope of judicial immunity.” Jud. Brf. p. 47. The burden works in the opposite direction: “The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. . . . The burden is on the official claiming absolute immunity to identify the common-law counterpart to the function that the official asserts is shielded by absolute immunity.” Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003) (quoting Burns v. Reed, 500 U.S. 478, 486–487). As with any affirmative defense raised at the pleading stage, Judicial Appellees have the burden of establishing the defense on the face of the complaint “with certitude.” See Fed.R. Civ.P 8(c)(1); Gray v. Evercore Restructuring L.L.C., 544 F3d 320, 324 (1st Cir. 2008). A plaintiff need not plead to anticipate immunity defenses. Gomez v. Toledo, 446 U.S. 635, 640 (1980). A plaintiff need not plead with specificity. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002).
The FAC alleges many acts of each defendant judge in many claims, yet Judicial Appellees fail to identify any claim accusing a judicial act within the jurisdiction of any court. Appellees fail to carry their formidable burden.
Judicial Appellees do not dispute AOB analysis demonstrating that Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) illegally “expanded” Sparkman, but defend Ashelman as “binding precedent in this Circuit.” Jud. Brf. p. 43. The defense fails.
In Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) this Court addressed a strikingly similar question:
A goal of our circuit’s decisions, including panel and en banc decisions, must be to preserve the consistency of circuit law. . . . That objective, however, must not be pursued at the expense of creating an inconsistency between our circuit decisions and the reasoning of state or federal authority embodied in a decision of a court of last resort.
Id. at 900. Miller considered whether the district court or circuit panel was bound by circuit precedent—Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989)—that was, like Ashelman, “fundamentally inconsistent with the reasoning” of Supreme Court authority of Kalina v. Fletcher, 522 U.S. 118, 127-29 (1997), and Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993). Miller at 893. Because Babcock was “fundamentally inconsistent” with superior and subsequent authority, Miller held that neither the district court nor circuit panel was bound by circuit precedent. Id.
An even stronger case for release from Ashelman’s several errors is present. Ashelman’s broad grant of immunity is starkly inconsistent with Rehberg v. Paulk,, 132 S.Ct. 1497 (2012) and decades of prior controlling Supreme Court authority repeatedly admonishing that the “freewheeling” policy analysis contained in Ashelman is error. See analysis at AOB p. 51-55.
Appellees also persist in resurrecting Ashelman’s adoption of McAlester’s “encounter with a judge,” “precise act” and “act itself” debris. Jud. Brf. p. 42, 45, 48. The concepts did not survive Sparkman. “[A]s the language in Stump indicates, the relevant inquiry is the ‘nature’ and ‘function’ of the act, not the ‘act itself.’” Mireles v. Waco, 502 U.S. 9, 13 (1991). See also al-Kidd v. Ashcroft, 580 F.3d 949, 960 (9th Cir. 2009) rev’d on other grounds, 131 S. Ct. 2074 (2011). Immunity turns on function, not act or actor. AOB p. 52.
Ashelman’s “ultimate act” is also “fundamentally inconsistent” with superior and subsequent authority. The term originated in Ashelman at 1075 despite “fundamental inconsistency” with Pierson, Sparkman, and Rehberg. It is also inconsistent with this Court’s decisions in Rankin, Beard, Star v. Baca, and other authorities including Wallace v. Powell and cases cited on therein (Doc. No. 163). See AOB 56-61.
“Ultimate act” is also inconsistent with Dennis v. Sparks, 449 U.S. 24 (1980) which held that private parties conspiring with a judge do not enjoy a “derivative immunity” from the judge even if the judge is immune. Id. at 29. Sparks does not support immunity for inchoate conspiracy “setting in motion” deprivation because the Supreme Court was not presented with the question. Plaintiffs appear not to have targeted Judge Carillo, who was by then in prison, likely judgment-proof, and thus useless in responding to a money judgment. See Sparks v. Duval Cnty. Ranch Co., 588 F.2d 124, 125 (5th Cir.) on reh’g, 604 F.2d 976 (5th Cir. 1979) aff’d sub nom. Dennis v. Sparks, 449 U.S. 24 (1980). If Judge Carillo were still sitting—backed by an indemnity agreement—plaintiffs surely would have pled their case differently. If so, under Pierson and Sparkman Carillo’s immunity for the inchoate conspiracy must be analyzed separately. See AOB 56-61. See also Sparkman v. McFarlin, 601 F.2d at 264-68 (Sprecher, J., concurring); Lopez v. Vanderwater, 620 F.2d 1229, 1237 (7th Cir. 1980).
The Fifth Circuit en banc decision in Sparks v. Duval Cnty. Ranch Co., 604 F.2d 976 (5th Cir. 1979) recognized that the “expansion” of Justice White’s test would be error: “The rule is a harsh one, laden with potential for unredressed wrong. As such, its scope should not be extended beyond that necessary to preserve the judge’s independence of mind and judgment . . .” Id. at 980.
Neither the district court nor a panel of this Court is bound by Ashelman’s several “fundamentally inconsistent” errors.
Bradley Does Not Support “Ultimate Act”
In Bradley, Justice Field described his fear that a vindictive plaintiff could easily defeat immunity merely by “ascribing” an allegation of malicious intent to a judicial act, thereby forcing a judge to stand trial. “Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action.” Bradley at 348.
Modernly a judge’s distrust of her institutional colleagues is mitigated by procedural barriers provided in Harlow v. Fitzgerald, 457 U.S. 800 (1982) and Pearson v. Callahan, 555 U.S. 223 (2009) which protect against a mere “ascription” of culpable intent. These are bolstered by Twombly’s plausibility test, and Rule 56 thereafter.  Sparkman v. McFarlin, 601 F.2d 261, 267 (7th Cir. 1979). Judges are certainly not so fragile today. See Pennekamp v. State of Fla., 328 U.S. 331, 349 (1946) (“For this to follow, there must be a judge of less than ordinary fortitude without friends or support or a powerful and vindictive newspaper bent upon a rule or ruin policy, and a public unconcerned with or uninterested in the truth or the protection of their judicial institutions.”); Craig v. Harney, 331 U.S. 367, 376 (1947).
No court has ever denied that absolute immunity inflicts a “monstrous” injustice on wronged litigants, and taxes the credibility and integrity of judicial institutions. Gregoire v. Biddle, 177 F. 2d 579, 581 (2nd Cir. 1949); Butz v. Economou, 438 U.S. 478, 521 (1978). It has been justified as a necessary evil to protect the “ardor” of judges and prosecutors. Id. While one might reasonably have concluded that our efforts to assure “justice is done” would have been better-directed toward inculcating ardor through discipline and integrity than by “expanding” immunity, the issue is moot. Today the monstrosity of immunity is no longer the “least restrictive means” of promoting the “substantial state interest” of judicial efficiency. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991). Resolving Justice Field’s “ascribe” concerns is accomplished at the pleading stage, the heavy tax of absolute immunity no longer necessary, and thus the blunt-force monstrosity of absolute immunity should be rejected.
Conclusion: Ashelman and the District Court Should be Reversed
I answer it is better to invade the judicial power of the States than permit it to invade, strike down, and destroy the civil rights of citizens. A judicial power perverted to such uses should be speedily invaded.
Remarks of Representative Lawrence (House sponsor of the Civil Rights Act of 1866), Cong. Globe, 39th Cong., 1st Sess. 1837 (1866).
Ashelman has stood in error for 28 years. In error it has deprived scores of westerners remedy for intentional criminal wrongdoing. In the backwaters of county Family Courts Ashelman’s “expansion” over Congress has “expanded” the $50 billion divorce industry over of a vulnerable core of our communities—families in crisis—whose dishonest representatives have through schemes described in the FAC defrauded, extorted, and blockaded access to federal remedies and institutions the primary purpose of which is to prevent exactly such “expansion.” Ashelman and the despotic exploitation it fosters must end today.
Appellants respectfully request this Court reverse the district court’s interlocutory orders, utterances, and final orders, and shrink Ashelman to its well-deserved grave.
 See, e.g., FAC Count 1 (‘Stuart Assault”), Count 2 (inducement claims), Count 3 (“non-immune” allegations at ER 177, Claim 3.4, 3.5, 3.6), Count 4 (“Nesthus Obstruction of Justice”), Count 6 (supervisory claims), Count 9 (“non-immune” allegations at ER 206, 254, 257, 261-264), Count 10, Count 11 (Wohlfeil/Schall in “Doyne Terrorism”), and all racketeering counts.
 Harper v. Merckle, 638 F.2d 848, 857 (5th Cir. 1981).
 Ironically Justice Field’s rationale reveals profound distrust of the institution he comprises. Conceiving a more disturbing “no confidence” vote is impossible. Field’s contemporaries were not so jaded. “I cannot bring myself to believe that officers in command would hesitate to give orders which a sense of duty required . . . from any idle apprehension of being harassed by vexatious actions.” Dawkins v. Lord Paulet, L.R. 5 Q.B. 94, 108 (1869) (Cockburn, C.J., dissenting); Pulliam at 529-544; See also Pierson at 565 (Douglas, J, dissenting); Sparkman at 368 (Stewart, J., Powell, J., dissenting).
 See Note, Liability of Judicial Officers Under Section 1983, 79 Yale L.J. 322, 329-334 (1969) (hereinafter “Yale Note”) (“When courts first formulated the doctrine of judicial immunity, a plaintiff who pleaded properly could force a judicial officer to go to trial. This, of course, is no longer true in the federal courts.”); J. Feinman, R. Cohen, Suing Judges: History and Theory, 31 S. C. L. Rev. 201, 268-269 (1979) (hereinafter “Suing Judges”)
 Connick v. Thompson, 131 S. Ct. 1350, 1365 (2011)
4. Commission on Judicial Performance and Eleventh Amendment Immunity
California Coalition also sued the Commission on Judicial Performance and two of its employees, Lawrence Simi and Brad Battson. California Coalition sued these parties claiming they were dropping the ball in policing Family Court judges, and permitting the outrageous abuse of judicial authority, depriving families of rights of due process, thereby precipitating the rampant extortion, fraud, and divorce lawyer riches to fester inside of county courthouses. Details of California Coalition’s allegations are here.
The Commission responded with a different immunity argument under the Eleventh Amendment to the United States Constitution, which the Supreme Court has held prohibits States such as California from being sued in federal court, absent the state’s consent. The Commission claimed it was, in fact, the State of California, and entitled to the immunity. California Coalition contested that claim, pointing out how distinctly the Commission and the State of California operate, are funded, and controlled. From the brief:
Commission and Judicial Appellees concede that judicial and Eleventh Amendment immunities are (1) affirmative defenses (2) turning on facts, (3) for which they bear the burden of proof, (4) on the face of the complaint at this stage, (5) with certitude.
Commission Appellees concede the critical issues necessary to reverse—“the issue of state-funding was unsolved by the district court.” Comm. Brf. (DktEntry: 62) p. 18. They thus concede that Eleventh Amendment Immunity requires receipt of facts the Commission did not (and could not at the pleading stage) introduce in the district court. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987) (“We must look behind the pleadings . . .”); Fed.R. Civ.P 8(c)(1); ITSI T.V. Prods., Inc. v. Agric. Associations, 3 F.3d 1289, 1291 (9th Cir. 1993). The Commission concedes this Court has no precedent precluding the factual issue of the Commission’s relationship with the State of California. Comm. Brf. p. 19.
Commission incorrectly claims Appellants assert “Eleventh Amendment immunity may not be raised in a motion to dismiss.” Jud. Brf. 14. The AOB argues the opposite—that immunity may be adjudicated on a motion to dismiss “in unusual circumstances—where the face of the Complaint ‘admits’ the defense . . . ‘with certitude.’” AOB 47. Commission Appellees did not assert that the original Complaint “admitted” the Commission as a State “with certitude,” and must concede it asserted the opposite fact—the Commission is an “entity” “beneath state level.” AOB at 48; Compl. ¶¶ 18, 172. These factual allegations are presumed true. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).
a. Commission Concedes Ricotta is Insufficient
Commission Appellees also concede the single case relied on by the district court—Ricotta v. California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998)—“did not engage in an extensive Eleventh Amendment assessment.” Comm. Brf. p. 20. That is a vast understatement—Ricotta did not engage in any “Eleventh Amendment assessment” because Mr. Ricotta, appearing in pro se, unwisely conceded he “erroneously sued the state” when naming the Commission. Ricotta at 976.
These concessions alone are sufficient to reverse the district court’s dismissal based solely on Ricotta. See AOB at 47-48.
Commission Appellees Improperly Assert New Facts Contrary to the FAC
At this pleading stage, the only source of facts under the Eleventh Amendment analysis are those pled in the initial Complaint (Doc. No. 1). The Commission cannot contest that the presumed-true allegations describe Commission Defendants as “beneath State level” entities. Compl. ¶18 (“an entity”), caption (“municipal entity”). Both SIMI and BATTSON are sued in both individual and official capacities under only the Commission—neither are identified as employees or agents of the State of California. Compl. ¶¶19, 20. On the only relevant record, the Commission’s motion should have failed.
Commission Offers California Law as Fact—Yet Undermines Commission’s Sovereignty Claim
Commission Appellees cite California law as a substitute for necessary facts evidencing their relationship with the State of California. Statutes establish legal authority—they are not evidence necessary under Pennhurst (State treasury in jeopardy, State has complete control, and entire State will be bound—see n. 11, supra.). The recitations contained in the Constitution and Government Code statues are in this context inadmissible hearsay offered for the truth of the matters asserted. They were not submitted by other means such as judicial notice, and are thus strikable as matter outside of the record. See accompanying Motion to Strike Improper Excerpts. In the district court Commission Appellees did not, and could not at the pleading stage, introduce this controversial evidence.
The statutes are further inadmissible as they controvert the Commission’s own assertion of unity with the State of California. The Commission’s citations indicate it exercises subordinate, specific jurisdiction over county officials subordinate to the Supreme Court (Comm. Brf. p. 16); its finances are “separate from the budget of any other state agency or court” (Id. p. 18); it has “independent rule-making authority” (Id.); is operated by citizen volunteer and county judge members; maintains “independent” structure, and powers over active and retired (non-State-employee) county officials to “investigate”; and has “oversight and discipline of subordinate” (county) judges (Id.). The Government Code sections describe independent Commission powers to investigate retired (non-State-employee) county officials; management of county judge disability retirement applications; its governance by “masters” (rather than state legislators); its independent ability to hire, manage, reimburse, and pay “medical and other experts and reporters” and independent “special counsel” from “funds available to it” (Id. at 19) (emphasis added).
These sections also do not evidence the state Constitution’s “establishment” of the Commission. They are rules like any other state law governing behavior—how the Commission’s members are appointed, length of terms served, and how judges are disciplined. The California Constitution “references” many entities which are well-recognized as “beneath State-level,” including counties (Art. 11 § 1), cities (Art. 11, § 6), county courts (Art. 6, § 1), schools and school districts (Art. 9 §§ 5, 6, 14), the Regents of the State of California (Art. 9, § 9), and the “public corporation” that is the State Bar of California (Art. 6 § 9).
If California law becomes admissible as evidence at some stage, it will undermine Commission’s claim to unity with the State.
The State of California Has Waived or Consented to Federal Jurisdiction in Due Process and Equal Protection Claims
The Fourteenth Amendment provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. XIV, sec. 1. The Amendment, passed by representatives of the States in the Senate in 1868, nearly 84 years after the 1795 ratification of the Eleventh Amendment, constitutes unequivocal consent by the States, through their representatives in the Senate, to be bound by this federal law.
Section 5 of the Fourteenth Amendment grants Congress the power to enforce the Section 1 guarantees against States by enacting “appropriate legislation.” Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 365 (2001). The 1871 Civil Rights Act, also enacted by representatives of States in the Senate, was a specific deployment of Congress’ power under section 5, empowering citizens to bring suit under the Fourteenth Amendment, and further articulating the States’ consent to be sued in federal court for its violations of the Fourteenth Amendment.
“Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in racial discrimination.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 190-91 (1970) (Brennan, J., concurring in part and dissenting in part). Justice Brennan’s observation was formally enacted into legislation in 1986. 42 U.S.C. 2000d-7 provides:
(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
The Fourteenth Amendment and the Civil Rights Act are both a “Federal statute prohibiting discrimination.” The State of California receives generous “Federal financial assistance” through numerous sources including interstate highway, education, agriculture, housing and urban development, energy, justice, labor, social insurance and welfare, and medical insurance assistance, incentive “matching” payments to States for child support enforcement and family programs under Titles I, IV-A and –D, X, XI, XIV and XVI of the Social Security Act and the Act of July 5, 1960 (24 U.S.C. Chapter 9).
The FAC alleges discrimination through numerous equal protection and due process claims. See “EQUAL PROTECTION” at ER 145 (FAC ¶ 163); EQUAL PROTECTION CLASSES at ER 230-32 (FAC ¶ 629-635); Section 1983, 1985, and 1986 Counts at ER 257-264 (FAC ¶¶ 774-807); SUBSTANTIVE DUE PROCESS at ER 146 (FAC ¶ 165); and Prospective Relief Count 2 at ER 353-55.
As the State of California has received abundant “Federal financial assistance,” it has subjected itself to the jurisdiction of United States courts for claims the State has discriminated in the administration of that assistance. Even if mere “arms of the state,” Commission Appellees must defend this lawsuit in a United States courthouse. See Edelman v. Jordan, 415 U.S. 651, 671 (1974)
California Constitutional Immunity Does Not Protect the Commission; Employees are Not Immune For Ultra Vires Acts
California Coalition concedes that Mssrs. Simi and Battson enjoy an immunity against state law claims for acts taken in the course of their official duties. California Coalition accuses only unconstitutional conduct, which can never be pursuant to official duty. FAC Count 5, Racketeering Counts 1-11 (ER 217-231, 316-349); Cal. Const. art. I § 26; Katzberg v. Regents of Univ. of California, 29 Cal. 4th 300 (2002); Pennhurst at 909 (1984). Duly-enacted legislation bestowing immunity on select officials performing the critical public duty of disciplining judicial officials does and should enjoy a presumption of the strongest immunity. Un-enacted “policy” proclamation by judicial officials who uniquely benefit from their self-legislation does and should suffer the opposite presumption—of reckless illegitimacy.
The Commission’s “Other Grounds” Are No Help
The December 23 dismissal (ER 48) cited only Ricotta and California Constitution Art. IV, § 18(h) without reference to other law the Commission asserts here. Appellants distinguished Commission’s other cases below demonstrating they too failed to adjudicate the critical issue, and the district court apparently agreed. Doc. No. 57, pp. 15-17. Commission’s new law should be disregarded, and its dismissal be reversed and remanded instructing that Commission Appellees must introduce evidence in the district court.
 Commission Appellees must prove these facts: (1) A money judgment against the commission “would expend itself on the public treasury.” Dugan v. Rank, 372 U.S. 609 (1963); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Shaw v. State of California Department of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986); (2) The specific acts accused in the Complaint were the exercise of state-level authority. Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987); and (3) The State of California would be bound by any injunctions issued by the district court below. Pennhurst, supra.; Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 400-401 (1979); Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994). It is insufficient that the Commission may exercise a “slice of state power.” Id.
 Commission Appellees cite this Court’s 1998 unpublished decision in Ricotta in violation of Circuit Rule 36-3(c). Commission Brf. p. 20, n.3. The illegal citation is aggravated by the fact that the Commission implies the Supreme Court’s denial of certiorari on Mr. Ricotta’s unsuccessful petition (528 U.S. 864 (1999)) supported the district court decision. Appellants respectfully request leave of Circuit Rule 36-3(c) to submit rebuttal (not authority) refuting the Commission’s citation to the unpublished decision. The Supreme Court’s denial of Mr. Ricotta’s petition on the unusual outcome of this Court’s (unpublished) opinion cannot be construed to affirm a finding that the Commission was entitled to Eleventh Amendment immunity. The district court’s (published) adjudication of Eleventh Amendment immunity issues (4 F. Supp. 2d 961 (S.D. Cal. 1998)) was not adjudicated in the unpublished decision. In an extremely unusual outcome, only a Rooker-Feldman issue that was not presented in the district court or on appeal was dispositive in this Court’s (unpublished) opinion, and thus on petition.
5. Ancient Code Pleading is Long-Dead, But Family Court Defendants and The District Court Improperly Relied on It
All of the Family Court entities defended the district court’s dismissal by citing a Ninth Circuit case that applied outdated law—McHenry v. Renne. Oddly, this case is frequently cited by the Ninth Circuit and district courts in dismissing pro se complaints that are imperfect. Yet the case relies heavily on ancient laws of pleading common in the nineteenth century, called “form pleading”—if a plaintiff didn’t plead exactly as provided in the forms, the complaint was considered defective, and the case could be dismissed. However, in 1938 the federal courts abandoned these draconian rules, permitting liberal pleading in any civil action. This law is well-recognized in the Supreme Court and most circuits, but for some reason judges just don’t like it. Several cases in the last fifty years have “creeped” into Ninth Circuit caselaw reverting back to the “good old days” (for judges) of form pleading. California explained why McHenry is one of those cases, and why it should be abrogated immediately. From the brief:
McHenry Applied Abrogated “Forms Of Action” Standard and Abrogated Circuit Law
Appellees rely heavily on McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996). McHenry applied abrogated pre-1937 Federal Rules “form of action” standards. Judge Kleinfeld wrote: “The forms of action we have buried, but they still rule us from their graves. . . . [T]here are good reasons why the forms of action still shape pleadings, though the rules no longer require pleadings to conform to the ancient forms.” Id. at 1180 (quoting F.W. Maitland, The Forms of Action At Common Law 2 (1909)). Judge Kleinfeld dismissed despite finding the magistrate identified several cognizable claims. Id. at 1176-77.
This astonishing reach into the “graves” of the obsolete forms of action to uphold dismissal with prejudice of a viable complaint has been error since the 1938 Rules Enabling Act, which expressly “buried” the ancient forms of pleading in favor of a single form—the “civil action.” “The court may at any time unite the general rules prescribed by it or cases in equity with those in actions at law so as to secure one form of civil action and procedure for both.” Ch. 651, Pub.L. 73–415, 48 Stat. 1064, enacted June 19, 1934. In “burying” the forms the Act provides: “All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” 28 U.S.C.A. § 2072 (West). Notwithstanding Judge Kleinfeld’s fondness for Professor Maitland and the ancient forms of action, his foundation for the holding of McHenry remains—gratefully—long-interred.
McHenry also invoked a comparison with the skeletal Form 9 to the Rules, a standard which has been sadly abandoned since Twombly. “The Forms Appendix to the civil rules, with its beautifully brief model complaints, is a fossil remnant of the era of reform that produced the civil rules in 1938 . . .” Kadamovas v. Stevens, 706 F.3d 843, 844-45 (7th Cir. 2013). Dissenting in Twombly, Justices Stevens and Ginsberg berated their majority for abandoning Form 9 by “rewrite[ing] the Nation’s civil procedure textbooks and call into doubt the pleading rules of most of its States . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 579 (2007) (Stevens, J., Ginsburg, J., dissenting). “[T]he Court has announced a significant new rule that does not even purport to respond to any congressional command . . . .” Id. at 596. McHenry’s invocation of Form 9 even further diminishes its authority in the present case asserting complex conspiracies against many defendants subject to Twombly’s plausibility standards that compel detail and abandonment of Form 9’s simplicity.
McHenry also cited to Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) which was overruled in Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002) as defying then-controlling Supreme Court authority of Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163 (1993). See also Crawford–El v. Britton, 523 U.S. 574, 599 (1998) and Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002). Branch, too, is long dead.
It would be difficult to identify a more morbid assembly of dead law in a live case than McHenry. Yet McHenry is beloved by some desiring error. California Coalition respectfully suggests this Court could serve beneficial ends by ending McHenry’s death struggle with the final stake of abrogation.
Nevijel Has Been Repeatedly Diminished
In Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671 (9th Cir. 1981) plaintiffs conceded (perhaps unwisely) that their third complaint did not comply with Rule 8, and sought leave to amend again. On plaintiffs’ admission, the district court denied leave and dismissed. Plaintiffs on appeal did not assert compliance with Rule 8, but only that “that the district court abused its discretion in dismissing” the case under Rule 41(b) because “less drastic alternatives” were available. Id. at 674. This Court affirmed on the admission and also “aggravated circumstances” of three other cases brought by the same plaintiff in different state and federal venues against the same insurance defendants on the same legal theories that had been dismissed for the same reasons. Id.
Nevijel’s facts are not present. California Coalition insists the FAC—an initial complaint to most Appellees—satisfies Rule 8, but could be amended to cure technicalities. AOB 44-45. Appellees do not allege “aggravated circumstances” because California Coalition has brought no prior suit.
Nevijel has been repeatedly diminished since 1981. In Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1129 (9th Cir. 2008) this Court revisited Nevijel’s application of the “abuse of discretion” standard, holding “We review a Rule 41(b) dismissal for abuse of discretion. To do so, we must necessarily consider the legal question of whether the district court correctly dismissed without prejudice the original complaint on Rule 8 grounds. ‘A district court by definition abuses its discretion when it makes an error of law.’” Id. at 1129 (internal citations omitted). This Court in Hearns declined to follow Nevijel, reversing the district court’s dismissal under Rule 41(b) as an abuse of discretion because, by misapplying Rule 8, the district court committed an error of law. Id.
Other courts have declined to follow Nevijel. See Fid. Nat. Title Ins. Co. v. Castle, 2011 WL 6141310 (N.D. Cal. 2011) (RICO complaint against 52 defendants, 12 counts, 44 pages, 565 pages of exhibits, 13 plaintiffs, with claims “broken into parts” and in which plaintiffs “regularly refer to ‘defendants’ without specifying exactly which defendant or defendants is liable for the alleged acts.”) “[T]he Court finds no fault with the length and complexity of the complaint, as that is a necessary consequence of the number and complexity of the schemes alleged.” Id.; Sathianathan v. Smith Barney, Inc., C 04-2130 SBA, 2004 WL 3607403 (N.D. Cal. June 6, 2005), n. 15 (declining to follow Nevijel where plaintiff proceeding in pro se); Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (declining to follow Nevijel where plaintiff proceeds in pro se).
6. California Public Records Act Provision Preventing Publication of Officials’ Home Address Is Unconstitutional
At the beginning of the case in 2013 the San Diego County Superior Court general counsel Kristine Nesthus aggressively pursued California Coalition members, affiliates, its process servers, and counsel for filing the complaint containing the home addresses of several judges. She deployed San Diego County sheriff’s deputies and California Highway Patrol detectives to contact and threaten California Coalition’s community with arrest for publishing the complaint. California Coalition responded with an emergency motion to protect its members and restrain Ms. Nesthus and an army of law enforcement from threatening California Coalition.
Ms. Nesthus and San Diego Superior Court chief administrative executive, Michael Roddy, and Presiding Judge Robert Trentacosta claim that their behavior in deploying law enforcement was justified under a section of the California Public Records Act that prohibits publication of a public official’s home address on the Internet. California Coalition argued that the section was inapplicable, and unconstitutional. The district court didn’t decide the issue, but instead sealed the initial complaint. Eventually, as a courtesy California Coalition filed its First Amended Complaint that removed the addresses.
But the Family Court judges weren’t content to stop there. The raised the issue in the appeal, asking the Court of Appeals to dismiss the FAC because it violated the California Public Records Act. Because Family Court judges put the Act at issue on appeal, California Coalition responded with an additional request in the appeal—hold the California Public Records Act provision prohibiting speech about public officials’ home addresses to be unconstitutional. From the brief:
Also from a footnote Judicial Appellees assert a defense that California Government Code § 6254.21 prohibits any person from displaying on the Internet a judicial officer’s home address.” Jud. Brf. p. 55, n.16.
California Coalition argued in its Ex Parte Application of Leave to File a Temporary Restraining Order below (Doc. No. 4, ER 364-371) and re-assets now that this statute is an unconstitutional deprivation of expression because it is (1) content based and (2) does not fall within the several traditional categories of permitted restriction on the content of speech. United States v. Alvarez, 132 S. Ct. 2537 (2012). Statutes prohibiting speech based on content are presumed invalid. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 660 (2004). Section 6254.21 is content-based because one must look at the content of the speech to determine if it falls within the statute’s prohibition. Foti v. City of Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998). The statute proscribes reference to the telephone number and address of “an elected or appointed official.”
Communication containing public official residence and contact is expressive as relevant to important political rights. An official’s residence identifies voting and electoral district for eligibility for office, neighborhood relationships, standard of living, indicates political inclinations relevant to the official’s identity, fitness, and character. Contact information enables communication to the official of information and opinions relevant to his or her office. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (describing laws prohibiting expression regarding public officials as “a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 839 (1978) (invalidating law restricting publication of confidential records of judicial discipline proceedings). Judges have been described as “men of fortitude” and may be expected to receive and withstand intense public scrutiny and criticism, including scrutiny of their lifestyles, neighborhoods, and places of abode. Craig v. Harney, 331 U.S. 367, 376 (1947). Section 6254.21 burdens such activity, is content-based, and therefore invalid.
The burden of resurrecting section 6254.21 from the presumption of invalidity rests on the parties asserting it. Alvarez at 2549. Such an achievement seems dubious.
Section 6254.21 does not to fall within any of the “historic and traditional categories of expression long familiar to the bar.” Id. at 2544. The CPRA was enacted in 1968—long after the ratification of the First Amendment, and of course could not have been contemplated as an exception by the Constitution’s framers.
Further, the state interests protected by the CPRA are not privacy, but public access to public records. Section 6250 of the CPRA describes the relevant state interest:
In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.
In addition, the CPRA proscription against disclosure “on the internet” appears not to be the “least restrictive means” for protecting the privacy interest asserted. See Aschcroft at 666. Address and telephone information is available from numerous sources, including the county registrar of voters, online election campaign financing forms, ordinary phone books, credit records, campaign financing records, and many other public sources. Less restrictive means for protecting such information include the official’s own ability to refuse to disclose such information.
The district court relied in part on Appellees’ assertion of the CPRA in denying Appellants’ motion for a witness harassment restraining order which is appealed here (Issue 4, AOB 17, 66), and Appellees appear intent on asserting this issue “as a matter of law” in defense of Count 4 of the FAC. The CPRA’s validity is thus at issue in this appeal.
Appellants submit California Government Code § 6254.21 is an invalid content-based restriction on speech protected under the First and Fourteenth Amendments to the United States Constitution, and Article I §§ 2(a) and 26 of the California Constitution, and as an additional prayer for relief hereby respectfully request this court adjudge the statute to be invalid.
7. Family Court Appellees Violated Procedure By Failing to File Notices of Cross-Appeals for Issues Decided Against Them
Finally, California Coalition filed a separate Motion to Dismiss Untimely Cross-Appeals, asking the Court of Appeals to dismiss portions of Family Court Appellees’ Answering Briefs raising defenses they lost, or were not decided, in the district court. Because Family Court entities failed to follow procedure requiring them to file a formal notice of cross appeal (which permits longer briefs on more issues), these defenses were waived. From the brief:
A. Appellees’ “Other Grounds” Are Untimely Cross-Appeals
Appellees did not file notice of cross-appeal, instead asserting in their answering briefs that the additional arguments are “other grounds” which may achieve the same dismissal with prejudice reached in the district court. See, e.g., Jud. Brf. (DktEntry 51-1) p. 50, Bierer Brf. (DktEntry 60) p. 16, etc. Appellees’ characterization of the varied arguments as “other grounds” is incorrect.
This Court has “broad power” to permit or disallow cross-appeals “as justice requires.” Lee v. Burlington Northern Santa Fe Ry. Co., 245 F3d 1102, 1107 (9th Cir. 2001). “In determining whether to allow a cross-appeal that has not been properly noticed, we have considered factors such as: (1) “the interrelatedness of the issues on appeal and cross-appeal”; (2) “whether the nature of the district court opinion should have put the appellee on notice of the need to file a cross-appeal”; and (3) “the extent of any prejudice to the appellant caused by the absence of notice.” Id.
Appellee’s “other grounds” assert multiple, varied, and distinct affirmative defenses not “interrelated” to issues adjudicated by the district court including:
Statutes of limitations defenses aimed at certain civil rights claims (Jud. Brf. and joinders, Bierer Brf.; Doyne Brf.);
Rooker-Feldman defenses aimed at claims related to state court proceedings (Fritz Brf., Jud. Brf. and joinders, Doyne Brf.);
Younger abstention never asserted in the district court (Jud. Brf. and joinders, Doyne Brf.);
“Color of law” state action defenses aimed at civil rights claims directed to certain private parties (Jud. Brf. and joinders, Alliance Brf.);
Lanham Act “common consumer markets” and plausibility defenses (Fritz Brf., Jud. Brf., Lawyer Brf.);
State law litigation privilege and immunity defenses (Jud. Brf. and joinders; Bierer Brf., Doyne Brf., Lawyer Brf.);
Various Rule 9(b) particularity/plausibility defenses (all briefs);
Heck v. Humphrey defense (Jud. Brf. and joinders);
Attacks that FAC Section 1985 and 1986 claims are improperly pled and/or implausible (Jud. Brf. and joinders);
Noerr-Pennington attacks (Alliance Brf.);
Attacks on FAC prospective relief claims for abstention and standing (Jud. Brf. and joinders; Bierer Brf., Lawyer Brf.);
A “Domestic Relations Exception” jurisdictional defense (Doyne Brf.);
Attacks on the FAC Unfair Competition Law claims (Laywer Brf.
Plausibility attacks on RICO counts (Laywer Brf., Bierer Brf.)
These are not, as appellants allege, “other grounds” but entirely different grounds, and thus cross-appeals. A party seeking a substantive change to the district court judgment must file a cross-appeal. Levine v. Vilsack, 587 F3d 986, 991 (9th Cir. 2009); Lee v. Burlington Northern Santa Fe Ry. Co., 245 F3d 1102, 1107 (9th Cir. 2001). An appellee seeking relief in addition to that obtained in the district court, or to lessen the rights of an adversary must file a cross-appeal. El Paso Natural Gas Co. v. Neztsosie, 526 US 473, 479 (1999); Doherty v. Wireless Broadcasting Systems of Sacramento, Inc., 151 F3d 1129, 1131 (9th Cir. 1998).
Appellees cite Tanaka v. Univ. of S. Cal., 252 F.3d 1059 (9th Cir. 2001) in support of their “other grounds” argument. The case is inapposite. In Tanaka this Court affirmed dismissal of an antitrust complaint by taking a different path to the same result reached by the district court—dismissal of a single antitrust claim. Id. at 1062. The district court found the plaintiff could not plead the second of three elements required of an antitrust prima facia case—that a Pac-10 rule penalizing student athletes transferring between Pac-10 schools was “commercial” and therefore subject to antitrust regulation. The district court therefore found the “anti-transfer” rule was not subject to antitrust law, and plaintiff could not state her antitrust claim. Id.
This Court was uncomfortable adjudicating “the difficult issue” of Pac-10 anti-transfer rule being commercial. Tanaka at 1062. To obtain the same result this Court examined another element of the same antitrust claim: whether the transfer rule met the second prong of the three prong test—the rule of reason. Id. at 1063. This Court found the Pac-10 rule, even if commercial, did not violate the rule of reason, and was therefore not anticompetitive. On slightly alternative analysis, this Court affirmed. Id. at 1064-65.
Other cases cited by Appellees in support of their “other grounds” are analyzed the same way—courts finding alternative means of achieving the identical ruling in the district court.
None Of The “Other Grounds” Achieve Sweeping Dismissal Of The Entire Action Under Rule 8(a)(2)
The relevant “decision” below was dismissal of the entire action with prejudice under Rule 8(a)(2). None of the “other grounds” recited by Appellees can achieve the same result.
Appellees’ “other grounds” are all directed at some, but not all, claims of the FAC:
Two year statutes of limitations defenses aimed at civil rights claim cannot defeat RICO claims with five year statutes, etc.;
Rooker-Feldman defenses aimed at Stuart v. Stuart and People v. Stuart cannot defeat unrelated Stuart Assault (Counts 1, 2), Nesthus (Count 4) and Commission (Count 5) Obstruction of Justice Claims; Lanham Act, RICO, etc.;
State action defenses aimed at civil rights claims cannot defeat non-civil rights claims and claims against defendants who admit acting under color of law;
Lanham Act “common consumer markets” defenses can’t defeat RICO, civil rights, fraud, etc. claims;
State law defenses cannot defeat federal law claims, federal law immunities cannot defeat state law constitutional claims;
Immunity defenses cannot defeat claims against municipalities, private parties, conspiracies, etc.;
Heck v. Humphrey defense cannot defeat non-malicious prosecution (Count 3) claims;
Section 1985 attacks are targeted to only certain claims, cannot defeat the entire Count;
Noerr-Pennington attacks cannot defeat clams accusing criminal conduct, fraud, violence, etc.;
Prospective relief attacks cannot defeat money damages claims, and money damages claims cannot defeat prospective relief claims;
“Domestic Relations Exception” defense relates to federal jurisdiction over community property division and child custody equitable remedies not sought here;
The remaining pleading sufficiency attacks such as plausibility and particularity require complex analysis under Iqbal and Moss I, and are all curable by amendment to the FAC—a first pleading to most defendants. See Stuart Decl. (below). Dismissal with prejudice before even a single round of amendments would be error. Foman v. Davis, 371 U.S. 178, 182 (1962); Wyshak v. City Nat. Bank, 607 F.2d 824, 826-27 (9th Cir. 1979). This is particularly true where Stuart pleads in pro se. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).
The “other grounds” authority Appellees rely on does not contemplate such a circuitous “patchwork” means to an end.
2. Appellees Had Notice of Necessity of Cross-Appeal
Appellees’ asserted most of these arguments in the district court. See Doc. Nos. 16 (Superior Court Rule 12(b)(6), 22 (Commission on Judicial Performance and its employees Rule 12(b)(6)); 48, 49, 50, 51, 52, 53, 54, 62, 65, 67, 73, 74 (initial motions “deemed withdrawn” by district court on December 19); 131 (Omnibus); and 134-152, 162-181, 183-188 (18 joinders) (Appellees raise many new arguments here as well). Appellants jointly opposed. Doc. Nos. 161, 163, 164, 166, 183.
The district court ignored appellees’ arguments—effectively denying them—dismissing instead on Rule 8(a)(2). DktEntry 11-3, ER 11-12. Appellees’ Answering briefs acknowledge the district court denied on Rule 8(a)(2) alone. See, e.g., Jud. Brf. p. 32-41 (and all joinders). Defendants thus understood and received adequate notice of the district court’s rulings against them on every other ground—including those they assert here as “other grounds.”
California Coalition filed a notice of appeal on July 14, 2014, within five days of the July 9, 2014 dismissal. ER 1. The Notice of Appeal did not identify any of the “other grounds” Appellees assert here because Appellants prevailed on those issues. ER 1.
Finally, prejudice to California Coalition is obvious—Appellees have filed 14 briefs containing 50,000 words answering a single brief of 16,000 words that did not analyze any of the “other grounds.” Appellees’ have thus placed analysis before this Court which Appellants have not had notice to brief, have not briefed, and cannot brief in the type-volume limits of 7,000 words in a single reply brief as required under Circuit Rule 28-5 and Federal Rule of Appellate Procedure 32(a)(7).
The District Court Record is Inadequate to Permit Analysis of “Other Grounds”
Further, Appellants are prejudiced because there is insufficient record to adjudicate the “other grounds” issues raised by Appellees. “A trial court owes the parties and a reviewing court a reasoned resolution of the factual and legal disputes presented by a case.” Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 226-27 (9th Cir. 2013); Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 608 (9th Cir.2000) (declining to consider other grounds where insufficient record below).
Appellees asserted, and the district court denied, the varied claims they re-assert in answering briefs. On this record there is insufficient matter to enable substantive analysis or this court’s review. Muniz, supra.
B. Appellants Cannot Adequately Reply to 50,000 Words in 7,000 Words
To comply with FRAP 32(a)(7)(B)(ii) (“A reply brief is acceptable if it contains no more than half of the type volume specified in 32(a)(7)(B)(i)”) and to permit a single joint reply California Coalition requests to permit type volume of the accompanying reply to be one-half the 50,000 total words in answering briefs, for a total type-volume limit of 25,000 words in the accompanying reply. Appellants’ Reply totals less—about 20,000 words. This limit is consistent with the type-volume limit proportions of FRAP 32(a)(7)(B)(i)-(iii). See declaration of Colbern Stuart under Circuit Rule 32-2 filed herewith.
California Coalition submits that adjudication of complex pleading issues in the first instance on appeal is inappropriate and request that the “other grounds” asserted by defendants be treated as untimely cross-appeals and dismissed. California Coalition has filed herewith a Reply to Answering Briefs limited to the scope of the Opening Brief, and requests this Court permit the length of this Reply as proportional to the answering briefs, and adjudicate only the scope of the district court’s rulings and orders, and California Coalition’s Notice of Appeal, Opening Brief, and Reply.
Stay Tuned. This Case is Aimed to be a History-Making Advance for Families Facing the Treachery of Family Courts
Briefing is currently on hold as the Court of Appeals considered California Coalition’s Motion to Dismiss Untimely Cross Appeals. Ruling is expected in 30 days or less, with instructions to all parties regarding further briefing.